We’ve written a lot about cannabis and the Controlled Substances Act.  From immigration to waste dumping. From the Fair Labor Standards Act to the STATES Act, our articles run the gamut. Not long ago we wrote about a decision by the Second Circuit that may force the DEA to re- or deschedule marijuana after writing about the lawsuit when it was first filed last year. This lawsuit, you may recall, was brought by a group of five plaintiffs comprised of a child who uses cannabis oil successfully to treat life-threatening seizures, another child who treats with cannabis for Leigh Syndrome, a terminal neurological disorder, a former NFL linebacker, an Iraq War veteran, and a nonprofit. As sympathetic a group of plaintiffs as there ever were – and in my eyes equaled by the parents and child in the discussion that follows.

A recent federal court decision addresses the relationship between the Controlled Substances Act, the Individuals With Disabilities Education Act (“IDEA”), and state laws permitting the medical use of cannabis.  The ruling is Albuquerque Public Schools v. Sledge, Civ. No. 18-1029 KK/LF, Civ. No. 18-1041 KK/LF (D. Ariz. Aug. 8, 2019). (Email me if you’d like a copy of the ruling.) Briefly, IDEA makes available a “free and appropriate public education” (or FAPE) to eligible children with disabilities. IDEA requires that schools provide special education services as outlined in a student’s Individualized Education Program (“IEP”). The decision addresses several issues arising under the IDEA, but since this is a cannabis blog and since we are not education lawyers, this post focuses on the cannabis related issues.

Parents seek to have their daughter treated with cannabis oil for seizures that occur at school

P.S.G. (“Student”) was born in 2013. She has Dravet Syndrome and as a result has had life-threatening seizures since infancy. Her doctors have prescribed legal medications that have not always worked and have caused serious side effects including inconsolable screaming and respiratory depression. Student visited the emergency room frequently when these were the only medical treatments she took. In 2016, the New Mexico Department of Health (“NMDOH”) gave Student’s mother (“Mother”) authorization to treat her daughter with cannabis pursuant to New Mexico’s Lynn and Erin Compassionate Use Act (“CUA”), whose purpose is to allow the use of medical cannabis in some circumstances.

Parents found the administration of CBD three times daily and cannabis oil at the onset of a seizure greatly reduced the frequency and duration of Student’s seizures without any serious side effects.

In 2016, the Albuquerque Public Schools (“APS”) informed Mother that Student could not receive cannabis oil on school grounds. Mother then requested permission from APS for “homebound services.” The APS held a meeting to develop an IEP which proposed Student attend a special education preschool for one hour a day. Student began attending preschool accompanied by Mother, who sat in the classroom every day so she could remove Student from school to administer cannabis oil in the event of a seizure. This continued until Student reached kindergarten age.

In 2018, the APS held another meeting to develop Student’s IEP for the 2018-19 school year – her kindergarten year. Mother wanted Student to receive a public education and did not want to homeschool Student. APS proposed that Student attend full-day kindergarten at a neighborhood school with an one-on-one educational assistant. Mother proposed an abbreviated schedule because she was unable to accompany her daughter to school all day every day and was unwilling to send her daughter to school without the means for her to receive cannabis oil as a rescue medication.  APS rejected Mother’s proposal.

Parents then submitted a request for an IDEA hearing. Parents proposed that their daughter attend kindergarten full-time and receive cannabis as needed from trained school personnel. After receiving evidence over the course of three days, the hearing officer ruled that “[g]iven the child’s need for medication that the school cannot legally administer,” Student’s least restrictive environment was “the homebound setting with socialization opportunities.” The hearing officer described this educational plan as “a hybrid, homebound kindergarten placement” where Mother may attend school at her option with the school nurse administering Epidiolex.

The hearing officer also found that APS failed to provide Student with the services required by IDEA. APS appealed the ruling to the federal district court and argued the hearing officer erred exercising jurisdiction over issues related to medical cannabis and in concluding that Parents met their burden of proving that Student needs cannabis to treat her seizure disorder. APS also alleged that “the IDEA does not require a school district to accommodate the use of an illegal substance to provide a FAPE.”

The federal court rules that the IDEA does not require the Arizona Public Schools to administer or accommodate the administration of cannabis to satisfy its obligation to provide students with a free and public education

The court began its analysis by explaining that with one exception, the possession, use, and distribution of cannabis for any reason is criminalized under federal law. The court further noted there are no federal exemptions for medical use. This meant that applying federal preemption principles, the CUA must give way to federal law. (Where state and federal law conflict, federal law wins.)

The court then addressed Parents’ claim that their daughter may receive cannabis “legally” under the CUA.  First, said the Court, the CUA does not make the possession, distribution or use of cannabis lawful but merely extends qualified immunity to qualified patients and their caregivers from state prosecution. This is different from making cannabis “legal,” and reading the CUA to do so would conflict with federal law (and federal law prevails).  The court also noted that the CUA did not extend its waiver to school staff who administer cannabis.

Next the court ruled that the IDEA cannot be interpreted to require APS to “accommodate” a federal crime to satisfy its obligations to provide student with a FAPE.  In so ruling, the court relied on cases holding that the Americans with Disabilities Act does not require the accommodation of medical cannabis use. The court then reasoned that cannabis could not be reasonably deemed a “related service” under the IDEA.

This ruling leaves the parents of a five-year old girl with undesirable options: send her to kindergarten and hope she doesn’t have a seizure since they cannot send her to school with what they know prevents seizures (cannabis oil), or homeschool her and provide her “socialization opportunities.”

In this author’s view, this decision is a sound reading of federal law and establishes the need for reforming marijuana laws at the federal level. The media is abuzz with articles about the so-called “vaping crisis,” but all too often ignore important stories like this in the ongoing conversation about marijuana reform.

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